JUDGMENT V. Eswaraiah, J. - These two Criminal Appeals are filed against the Judgment dated. 5-4-1995 in S.C. No. 29 of 1993 on the file of the Assistant Sessions Judge, Gudivada. Appellants in Crl. Appeal No. 252 of 1995 are the accused Nos. 1. 2 and 3 whereas appellants in Crl. Appeal No. 259 of 1995 are the accused Nos. 4. 5 and 6 in the said Sessions Case No. 29 of 1993. A-1 is found guilty for the offences under Sections 376, 451, 506 and 509 I.P.C. and he is convicted and sentenced to undergo RI for a period of eight years, one year, two years and six months for committing the offences under Sections 376, 451, 506 and 509 I.P.C. respectively and all the sentences were ordered to run concurrently. A-2 and A-3 are found guilty for the offence & under Sections 376 r/w 109 and 451 IPC and they are convicted and sentenced to undergo RI for a period of 5 years and one year each respectively for committing the offences under Sections 376 r/w 109 and 451 IPC A-4 to A-6 are found guilty for the offences under Sections 506 and 509 IPC respectively. All the sentences were ordered to run concurrently. 2. The case of the prosecution is that A-1 to A-3 are the residents of Gudivada and the victim girl Mangalakshmi P.W. 3 is the resident of House No. 12/133. Saraswati Street. Gudivada. P.W. 3 and her deceased sister Usha Rani after passing 7th class were preparing to appear for Matriculation examination privately through Bharati Niketan School. Gudivada. P.Ws. 4 and 5 were also students in the same school along with the victim and the deceased. A-I who had an eye on the victim girl P.W. 3 started harassing her while she was going to School and coming back along with his associates A-4 to A-6. A-2 is boyhood mate of A-1 and A-3 was a co-student in Delhi Institute. Gudivada along with A-1. Thus A-2 and A-3 are interested in A-1, A-1 started writing love letters and often used to send them through the deceased and A-3. A-1 used to approach the victim on her way to school demanding a reply and further threatened her saying that if she refuses to reply he will commit suicide by leaving a suicide note implicating her parents that they are responsible for his death. A-1 used to approach the victim on her way to school demanding a reply and further threatened her saying that if she refuses to reply he will commit suicide by leaving a suicide note implicating her parents that they are responsible for his death. which may result in their imprisonment. A-1 thus used to blackmail the victim girl P.W. 3 and A-3 also used to persuade the victim to write letters to A-1 and reaffirmed that P.W. 3 will land herself in trouble along with her parents if she does not heed to the demands of A-1, A-4 to A-6 used to follow A-1 to criminally intimidate the victim by making indecent gestures in forcing her to surrender to A-1 on her way to school and back. 3. During the third week of December. 1990. A-1 and A-2 criminally trespassed into the terrace of the dwelling house and successful in creating an alarm and terror in the mind of victim and accomplished their task in which A-2 took three photo graphs along with A-1 with P.W. 3 in three compromising postures with a view to blackmail and force her for sexual act and intimidate her. On 4-1-1991 A-1 again went on to the terrace of the house of P.W. 3 by criminally trespassing intimidated and blackmailed her by showing the photographs and raped her. The act of rape by A-1 was abetted and facilitated by A-2. Again on 25-1-1991 A-1 went on to the terrace and intimidated and blackmailed her and then raped her. In the meantime P.W. 2 came to the terrace, on noticing A-1 she raised alarm for her father who made a vain attempt to apprehend A1, but A-1 managed to ran away. On 26-1-1991 the accused dropped a letter as to how he lured the victim and raped her. 4. On these allegations the charges were framed against the accused. In support of the case of the prosecution. the prosecution examined 21 witnesses as P.Ws. 1 to 21 and marked Exs. P-1 to P-31 documents and M.Os. 1 and 2: On behalf of the defence D.W. 1 Doctor was examined and Exs. D-1 to D-28 are marked. 5. P.W. 3 the victim girl deposed that P.W. 1 is her mother, P.W. 2 is her elder sister and she studied Matriculation in the year 1990 in Bharati Niketan School. P-1 to P-31 documents and M.Os. 1 and 2: On behalf of the defence D.W. 1 Doctor was examined and Exs. D-1 to D-28 are marked. 5. P.W. 3 the victim girl deposed that P.W. 1 is her mother, P.W. 2 is her elder sister and she studied Matriculation in the year 1990 in Bharati Niketan School. Gudivada and her younger sister Usha Rani also studied 8th class during the year 1990 in the same school and they used to go to the School together. P.Ws. 4 and 5 also used to study in the same school. While they were going to the school and coming back from the school four male persons used to follow them and they used to make comments on her by describing her hairs cheeks and other parts of the body. The said four persons are A-1 and A-4 to A-6. Then she used to abuse them and on one day while she was going to the School A-1 dashed her with a bicycle. Then the books in her hands fell down due to the dash of the cycle of A-1, A-1 picked up the books and gave them to her saying sorry. After going to the School she opened the note book in which she found a white paper written by A-1 containing the words "I love you". Thereafter also the said four persons used to follow her and asked her to give a reply to the letter of A-1. When she chastised A-1 as he is doing vulgarly and warned him stating that she will report to her parents. Then A-1 said that he is the son of S.I of Police and all the police people are in their hands and she cannot do anything against them. A-4 to A-6 also supported the A-1. Her sister Usha Rani also retorted the acts of A-1. On the same day when she was going to a shop through a lane situated by the side of their house. A-1 followed her closely and he said that he cannot live without her and he asked her to give a reply for his letter. Otherwise, he threatened that he will commit suicide. She went away without giving any reply. On the next day she found A-3 along with P.Ws. 4 and 5 and subsequently A-3 got herself introduced to P.W. 3. Otherwise, he threatened that he will commit suicide. She went away without giving any reply. On the next day she found A-3 along with P.Ws. 4 and 5 and subsequently A-3 got herself introduced to P.W. 3. Four days after she came to the house of P.W. 3 and took her to the terrace of the building and gave a letter written by A-1 and went away. In that letter it is stated that A-1 deeply loving P.W. 3. Thus there was instigation by A-3 and on the night of 20-1-1991 A-1 came to the house of P.W. 3 and while she was sleeping he woke her up- by poking with an iron rod and she went along with A-1 to the terrace. A-1 showed the previous photographs, which were taken by A2 and threatened P.W. 3 to have sexual intercourse with him. As P.W. 3 did not agree to his request to have sexual intercourse with him he threatened to show the photographs to others to unpopular their family and forcibly had sexual intercourse with her. A-1 after having the sexual intercourse with P.W. 3 went away. There was bleeding from her private parts and she suffered pain at the time; of accused committing the sexual intercourse with her. A-1 said that he will not do any lass to her and he will marry her. On 25-1-1991 A-1 again came to her house and took her to terrace of the building and had sexual intercourse by threatening with the photographs stating that if she does not agree he will show the photographs to all the persons in the locality. He forcibly had sexual intercourse with her by threatening. Immediately after the intercourse she heard same sound in the house and started coming dawn to the first floor. P.W. 2 who is searching far P.W. 3 and on seeing P.W. 3 asked her why she went to the terrace. P.W. 2.suspected something an: the part of P.W. 3 and went to the terrace and she found A-1 there. P.W. 2 questioned him why he was there at that time. A-1 did not reply. Then P.W. 2 started getting dawn the stairs calling her father. Then her father on hearing the cries coming to the terrace. In the meantime A-1 on seeing the father of P.W. 3 jumped and ran away. P.W. 2 questioned him why he was there at that time. A-1 did not reply. Then P.W. 2 started getting dawn the stairs calling her father. Then her father on hearing the cries coming to the terrace. In the meantime A-1 on seeing the father of P.W. 3 jumped and ran away. P.W. 2 who is the sister of P.W. 3 and P.W. 1 who is the mother of P.W. 3 also corroborated the evidence of P.W. 3 with regard to the offence committed by A-1 against P.W. 3 an 25-1-1991. The medical evidence with regard to sexual intercourse with P.W. 3 also reveals by the evidence of the Doctor P.W. 15. P.W. 15 deposed that on examination of the victim girl P.W. 3 she found that her hymen already ruptured and her age appears to be 17 or 18 years. She stated that the victim girl was examined by the Orthopaedic Surgeon Dr. V. Visweswara Rao for ascertaining the age. 6. In so far as the age of the victim girl P.W. 3 is concerned. P.W. 15 Doctor stated that she might be aged 17 or 18 years and the accused also examined D.W. 1 Dr. V. Satyanarayana who is working as Civil Assistant Surgeon. Government Hospital, Kakinada and he stated that he has examined the victim girl P.W. 13 and he is of the opinion that her age is between 17 or 18 years. In the crass-examination he stated that the range of the age of P.W. 3 given by him is only arbitrary. He noticed epiphisial fusion of the head of the radius as completely fused. Therefore her age appears between 14 and 17. In the second skiagram he noticed the acromian fused and therefore she appears to be aged between 17 to 18 years. Thus the opinion of D.W. 1 and P.W. 15 is not specific or certain but it is only arbitrary and there is a scope far arbitration. As against the said evidence the prosecution marked the documents Exs. P-6 and P-7. Ex. P6 is the 7th class pass certificate of P.W. 3 dated. 17-9-1990 issued by the Krishna District 7th Class Comman Examination Board in which the date of birth of P.W. 3 was shown as 20th January 1977, Ex. P-7 is the hall ticket of P.W. 3 far the 7th Class Comman Examinations issued by the District Educational Officer. Ex. P6 is the 7th class pass certificate of P.W. 3 dated. 17-9-1990 issued by the Krishna District 7th Class Comman Examination Board in which the date of birth of P.W. 3 was shown as 20th January 1977, Ex. P-7 is the hall ticket of P.W. 3 far the 7th Class Comman Examinations issued by the District Educational Officer. Machilipatnam in which her date of birth is shown as 20th January, 1977, Ex. P6 is issued by the Krishna District 7th Class Comman Examination Board wherein the signatures of P.W. 3. Assistant Commissioner far Government Examinations and the District Educational Officer, Krishna District are contained. P.W. 8 who was running the institution Bharati Niketan School where P.W. 3 studied stated that he knows P.W. 3 and her sister Usha Rani and he has entered the date of Birth of P.W. 3 in the examination application form as 20th January, 1977 as given by her parents and P.W. 3 was also examined by the Assistant Civil Surgeon, Gudivada and the age estimated by the Doctor and the date of birth revealed by the parents of P. W. 3 was tallied and so the date of birth given by her parents was written in her application form. The incident occurred on P.W. 3 i.e., she was raped by A-1 on 25-1-1991 and her date of birth entered in the School record is 20-01-1977. Therefore, P.W. 3 was aged about 14 years as on 25-1-1991. The mother of the victim girl P.W. 3 is examined as P.W. 1. She has stated that while she and her husband were sleeping in the ground floor and her daughter was sleeping on the upstairs portion on 25-1-1991 and during the night time at about 2 a.m. her husband went for bath room, and at that time her eldest daughter raised cries as "Nanna, Nanna," and on hearing the cries her husband went to the stairs and saw one male person and when he made an attempt to catch him, the said person jumped and ran away. She has also stated that the date of birth of her daughter is 20-01-1977. She has also stated that the date of birth of her daughter is 20-01-1977. The letters exchanged by A-1 and P.W. 3 and admitted by A-1 as well as P.W. 3 clearly establish that A-1 had sexual intercourse with P.W. 3 and thus learned Counsel appearing for A-1 submits that P.W. 3 is a consented party and P.W. 3 was aged above 16 years and therefore, the sexual intercourse is by consent and it cannot be termed as a rape and in support of his contentions he placed reliance on a decision of this Court reported in K. Laxman Rao v. State of A.P.1 On the other hand the learned Public Prosecutor contends that there is no definite evidence or opinion given by the Doctors P.W. 15 or D.W. 1 to show that the age of the victim girl is above 16 years and Exs. P-6 and P-7 clearly, show that the age of the victim girl is 14 years and hence the findings of the trial Court cannot be interfered with and in support of his contentions he relied on a decision of this Court in Syed Arryad Ahmed v. State of A.P.2 and he also placed reliance on a decision of the Honble Supreme Court in Updesh Kumar v. Prithvi Singh3. 7. The first question that arises for consideration is as to whether P.W. 3 is below 16 years on the date of incident. As per Section 375 I.P.C. even if the sexual intercourse is with consent and if she is under 16 years of age, it is a rape. It is the contention of the learned Counsel for the appellants that there is no birth extract of P.W. 3 and her date of birth is not entered in any admission register of the school records and as per the statement of the parents only the date of birth of the victim girl was entered in the examination application form for the 7th class common examinations conducted by the Krishna District Common Examination Board and therefore, the date of birth entered in the application form is not an authenticated one and the said documentary evidence viz., Exs. P-6 and P-7 cannot prevail over the evidence of the doctors P.W. 15 and D.W. 1. P-6 and P-7 cannot prevail over the evidence of the doctors P.W. 15 and D.W. 1. If there is a definite opinion of the doctors to show that P.W. 3 is above 16 years, the trial Court could have considered the opinion evidence of P.W. 15 and D.W. 1. But the Doctors themselves stated that the date of birth given by them is arbitrary. That means it is not definite. As against the said opinion evidence, there is documentary evidence Exs. P-6 and P-7, which was supported by the oral evidence of P.W. 1, P.W. 3 and P.W. 8 P.W. 8 also stated that after examining P.W. 3 by a Civil Assistant Surgeon, Gudivada, her date of birth was entered in the application form as it was tallied with the date of birth furnished by the parents of P.W. 3. In view of the decisions cited by the learned Public Prosecutor arid in view of the fact that there is, no definite evidence or opinion given by the doctors in support of the contention of the learned Counsel for the appellant-A-1, I, am of the view that the documentary evidence Exs. P-6 and P-7 coupled with the evidence of P.Ws. 1, 3 and 8 prevails over the opinion evidence of P.W. 15 and D.W. 1 and it is safe to rely on the documentary evidence Exs. P-6 and P7 supported by the evidence of P.Ws. 1, 3 and 8 rather than the opinion evidence of P.W. 15 and D.W. 1. 8. In view of the finding that the victim girl is below 16 years of age, if the sexual intercourse even assuming for a moment is with consent of P.W. 3, it is a rape and therefore, the prosecution has proved beyond all reasonable doubt that A-1 committed rape on P.W. 3. Accordingly, I confirm the finding of the trial Court that A1 has committed rape on P.W. 3. 9. A-1 is also charged for the offences under Sections 451, 506 and 509 I.P.C. In view of the exchange of letters between A-1 and P.W. 3 it is stated that A-1 entered the house of P.W. 3 during the night on the invitation of P.W. 3 and therefore, it cannot be said that A-1 trespassed into the house of P.W. 3. May be at the first instance A-1 committed the trespass but there is no clear evidence on which date he has trespassed into the house of P.W. 3 and therefore it is difficult to upheld the finding of the trial Court that A-1 trespassed into the house of P.W. 3. In so far as the other offences under Sections 506 and 509 I.P.C. are concerned, in view of the exchange of letters between A-1 and P.W. 3, I am not inclined to accept that A-1 criminally intimidated P.W. 3. The so-called photographs alleged to have been taken have not seen the light of the day. Therefore, the question of tarnishing the image of P.W. 3s family by showing the photographs does not arise. Accordingly, I found A-1 not guilty for the offences under Sections 451, 506 and 509 I.P.C. 10. So far as the offence committed by A-2 to A-6 is concerned they are charged for aiding and abetting A-1 for committing the rape on P.W. 3. As per the evidence available on record, A-1 alone committed rape and there is no direct evidence to prove the alleged abetting by A-2 to A-6 for committing the rape by A-1. 11. Insofar as the offences said to have been committed by A-2, under Sections 376 r/w 109 IPC and 451 IPC are concerned, the only allegation against A-2 is that he has taken the photographs of A-1 and P.W. 3 and the said photographs have not been produced before the Court and therefore, there is no evidence to show that A-1 trespassed into the house of P.W. 3 and also abetted A-1 for committing the offence of rape. There is no abetment on the part of A-2 abetting A-1 to commit rape and therefore, I am of the opinion that the evidence is not sufficient 10 found A2 guilty for the offences under Sections 376 r/w 109 and 451 IPC. 12. Insofar as A-3 is concerned, the trial Court found her guilty for the offences under Sections 376 r/w 109 IPC and 451 IPC. 12. Insofar as A-3 is concerned, the trial Court found her guilty for the offences under Sections 376 r/w 109 IPC and 451 IPC. But there is no evidence to show that there is instigation on her part to commit rape by A-1 on P.W. 3 and there is no evidence to show that A-1 was aided by A-3 for committing the rape on P.W. 3 and therefore, I do not see any grounds to hold that A-3 is found guilty for the offences alleged against him (her). 13. Insofar as A-4 to A-6 are concerned, they are found guilty by the trial Court for the offences under Sections 506 and 509 IPC. The whole evidence did not show that they have criminally intimidated P.W. 3 at any time and even according to the evidence of P.W. 3, she has not stated at the earliest point of time anything about the criminal acts of A-4 to A6 either to the police or to the C.B.C.I.D and there is no corroboration to the evidence of P.W. 3 to that effect. Even otherwise also, according to the letters exchanged between A-1 and P.W. 3, they were having sexual intercourse. There is no evidence to show that A-4 to A-6 criminally intimidated and outraged the modesty of P.W. 3 and therefore, I hold that A-4 to A-6 are not found guilty of the offences under Sections 506 and 509 I.P.C. 14. Insofar as the sentence imposed for the offences committed by A-1 under Section 376 IPC is concerned though the trial Court has sentenced A-1 to undergo R.I. for a period of eight years, having regard to the facts and circumstances of the case and as the instigation started from the said of A-1 and P.W. 3 was persuaded subsequently for the sexual intercourse and since A-1 was found guilty only on the ground that P.W. 3 is under aged. I am inclined to take a lenient view and accordingly A-1 is sentenced to undergo R.I. for a period of five years for committing the offence under Section 376 I.P.C. 15. In the result, Crl. Appeal No. 259 of 1995 is allowed and the appellants, A-4 to A-6 are not found guilty for the offences under Sections 506 and 509 I.P.C. and they are accordingly acquitted. Crl. In the result, Crl. Appeal No. 259 of 1995 is allowed and the appellants, A-4 to A-6 are not found guilty for the offences under Sections 506 and 509 I.P.C. and they are accordingly acquitted. Crl. Appeal No. 252 of 1995 is partly allowed and the 1st appellant-1st accused is convicted and sentenced to undergo R.I. for a period of five (5) years for committing the offence under Section 376 I.P.C. A-1 is not found guilty for the offences under Sections 451, 506 and 509 IPC and he is acquitted for the said offences. A-2 and A-3 are not found guilty for the offences under Section 376 r/w 109 IPC and 451 IPC and they are accordingly acquitted. The impugned order is modified accordingly. Appeal No. 259 allowed. Appeal 252 allowed partly. 1. 1999 (1) ALT 506 : 1999 (1) ALD 543 . 2. 1994 (1) An. W.R. 572. 3. (2001) 2 SCC 524 .